FEINGOLD TO INTRODUCE RESOLUTION CENSURING THE PRESIDENT
Feingold Says Congress Must Condemn the President’s Violation
of the Public’s Trust Through Illegal Wiretapping Program

Washington, D.C. – U.S. Senator Russ Feingold
has announced that he will introduce a resolution in the U.S. Senate
on Monday to censure the President of the United States. Feingold’s
resolution condemns the President’s actions in authorizing the
illegal wiretapping program and then misleading the country about
the existence and legality of the program. Feingold calls the resolution
an appropriate and responsible step for Congress to take in response
to the President’s undermining of the separation of powers and
ignoring the rule of law.

“The President must be held accountable for authorizing
a program that clearly violates the law and then misleading the country
about its existence and its legality,” Feingold said. “The
President’s actions, as well as his misleading statements to
both Congress and the public about the program, demand a serious response.
If Congress does not censure the President, we will be tacitly condoning
his actions, and undermining both the separation of powers and the
rule of law.”

The President’s illegal wiretapping program is
in direct violation of the Foreign Intelligence Surveillance Act (FISA).
The FISA law makes it a crime to wiretap Americans in the United States
without a warrant or a court order. The Bush Administration has obtained
thousands of FISA warrants since September 11th and has almost never
been rejected by the FISA court. FISA even allows wiretaps to be executed
immediately in an emergency as long as the government obtains a warrant
within 72 hours.

“This issue is not about whether the government
should be wiretapping terrorists – of course it should, and
it can under current law” Feingold said. “But this President
and this Administration decided to break the law and they have yet
to give a convincing explanation of why their actions were necessary,
appropriate, or legal. Passing more laws will not change the fact
that the President broke the ones already in place and for that, Congress
must hold him accountable.”

# # #

FACT SHEET FROM U.S. SENATOR RUSS FEINGOLD
ON HIS RESOLUTION TO CENSURE THE PRESIDENT

Senator Feingold’s resolution of censure condemns the President
for breaking the law by authorizing an illegal wiretapping program,
and for misleading Congress and the American people about the existence
and legality of that program.

The President Broke the Law by Wiretapping
Outside of FISA

It Is Illegal to Wiretap Without the Requisite
Warrant or Court Order: The law is clear that the criminal
wiretap statute and Foreign Intelligence Surveillance Act (FISA) “shall
be the exclusive means by which electronic surveillance . . . and
the interception of domestic wire, oral, and electronic communications
may be conducted.”

FISA Has an Emergency Exception: The
Administration has indicated that it ignored FISA because the application
process takes too long. In fact, in an emergency where the Attorney
General believes that surveillance must begin before a court order
can be obtained, FISA permits him to immediately authorize the surveillance
as long as the government goes to the court within 72 hours. Prior
to 2001, the emergency wiretap period was only 24 hours. The Administration
requested and received the increase to 72 hours in intelligence authorization
legislation that passed in late 2001.

FISA Provides for Wartime Situations: FISA
also permits the Attorney General to authorize warrantless electronic
surveillance in the United States during the 15 days following a declaration
of war, to allow time to consider any amendments to FISA necessitated
by a wartime emergency.

The Administration Has Used FISA Thousands of
Times Since 9/11: Administration officials have criticized
FISA, but they have obtained thousands of warrants approved by the
FISA court since 9/11, and have almost never had a warrant request
rejected by that court.

The President Made Misleading Arguments Defending
his Wiretapping Program

Military Force Resolution Did Not Authorize
Wiretapping: The President has argued that Congress gave
him authority to wiretap Americans on U.S. soil without a warrant
when it passed the Authorization for Use of Military Force after September
11, 2001. There is no language in the resolution and no evidence to
suggest that it was intended to give the President authority to order
these warrantless wiretaps. Warrantless domestic surveillance is not
an “incident of war” akin to detaining an enemy soldier
on the battlefield as the Administration has argued.

In fact, Congress passed the Patriot Act just six weeks
after September 11 to expand the government’s powers to conduct
surveillance of suspected terrorists and spies. Yet the Administration
did not ask for, nor did the Patriot Act include, any change to FISA’s
requirement of judicial approval for wiretaps of Americans in the
United States.
Prohibition on Wiretapping Limits Executive Power: The President’s
assertion of inherent executive power is also wrong. The President
has extensive authority when it comes to national security and foreign
affairs, but given the clear prohibition in FISA, that authority does
not include the power to wiretap American citizens on American soil
without a warrant.

Executive Branch Review of Wiretapping Is Not
Enough: The President has argued that periodic executive
branch review provides an adequate check on the program. But Congress
when it passed FISA explicitly rejected the idea that the executive
branch should be fully entrusted to conduct national security wiretaps
on its own – a power that the executive had abused in the past.
In addition, the Administration has said that NSA employees decide
whose communications to tap. Executive branch employees are no substitute
for FISA Court judges.

Congress Did Not Approve This Program:
The extremely limited briefings of the President’s warrantless
surveillance programs to a handful of Congressional leaders did not
constitute Congressional oversight, much less approval. In fact, the
failure of the President to keep the Congressional Intelligence Committees
“fully and currently informed of all intelligence activities”
was a violation of the National Security Act.

The President Made Misleading Public Statements
about Administration Wiretapping

“Finally, we need to renew the critical provisions of the Patriot
Act that protect our civil liberties. The Patriot Act was written
with clear safeguards to ensure the law is applied fairly. The judicial
branch has a strong oversight role. Law enforcement officers need
a federal judge's permission to wiretap a foreign terrorist's phone,
a federal judge's permission to track his calls, or a federal judge's
permission to search his property. Officers must meet strict standards
to use any of these tools. And these standards are fully consistent
with the Constitution of the U.S.”

--President George Bush, June 9, 2005, in Columbus, Ohio

“A couple of things that are very important for you to understand
about the Patriot Act. First of all, any action that takes place by
law enforcement requires a court order. In other words, the government
can't move on wiretaps or roving wiretaps without getting a court
order. Now, we've used things like roving wiretaps on drug dealers
before. Roving wiretaps mean you change your cell phone. And yet,
we weren't able to use roving wiretaps on terrorists. And so what
the Patriot Act said is let's give our law enforcement the tools necessary,
without abridging the Constitution of the United States, the tools
necessary to defend America.”

--President George Bush, July 14, 2004, in Fond du Lac, Wisconsin

“Secondly, there are such things as roving wiretaps.
Now, by the way, any time you hear the United States government talking
about wiretap, it requires -- a wiretap requires a court order. Nothing
has changed, by the way. When we're talking about chasing down terrorists,
we're talking about getting a court order before we do so. It's important
for our fellow citizens to understand, when you think Patriot Act,
constitutional guarantees are in place when it comes to doing what
is necessary to protect our homeland, because we value the Constitution.”